In 2022 an estimated 18.3-million people aged 18 to 59 fell below the food poverty line: they could not “meet their daily caloric intake requirements”, say counsel for the Institute for Economic Justice (IEJ) and #PayTheGrants in legal argument to the high court in Pretoria.
They will be in court next week doing battle with the National Treasury and the minister of social development over the latest regulations governing the social relief of distress (SRD) grant — popularly known as the R350 grant. They argue the regulations breach constitutional rights and are making the grant inaccessible to millions of people who need it.
But the Treasury warns that the court orders they seek would be “disastrous” for the economy and that they are asking the court to “second-guess the government’s prioritisation of highly scarce resources, to the detriment of the whole system of social assistance”.
Recently increased to R370, the SRD grant was introduced during the Covid lockdown to ameliorate the financial distress that came with it. Originally meant to last for six months, it has been repeatedly extended. The government says in court papers that the grant remains a temporary measure while the economy recovers. But the IEJ and #PayTheGrants argue it is here to stay.
In written legal argument, counsel for the two organisations, Jason Brickhill, argues that the SRD grant is one of the government’s ways of giving effect to the constitutional right of access to social assistance. Yet the current formulation of the regulations “materially frustrate [government's] own policy”.
The idea that the government had introduced the SRD grant as a permanent policy commitment was a mistaken premise
There are several reasons why the regulations are unlawful, argues Brickhill. These include an online-only application system — people with no access to smartphones cannot apply; and Sassa's use of a bank verification system — as soon as someone’s bank account registers an amount greater than R624, they will not receive their grant that month. The system does not cater for people who share bank accounts or for one-off payments from friends, for example.
When someone wants to appeal, if their application is denied, the system does not allow them to present new information — the system just runs the same check again, with the same information.
The IEJ and #PayTheGrants say the department of social development had “openly acknowledged that these barriers have as their purpose the reduction of the number of SRD grant recipients in order to remain within the budget”.
There were an estimated 16-million to 22-million people eligible to receive the grant, but the budget allocated was enough for only half that number. “The use of administrative and procedural obstacles to reduce uptake is patently irrational and unlawful,” says Brickhill.
The way “income” and “financial support” are defined in the law is also wrong, say the two organisations. It should not be that ad-hoc payments into people’s accounts excludes them from receiving the grant in a given month.
The IEJ and #PayTheGrants also say the value of the grant has stayed the same since it was first introduced — with only a R20 increase this year. There has been no accommodation made for inflation, particularly food inflation. The income threshold for receiving the grant has been the same since the grant was introduced.
“When inflation is taken into account, a person who qualifies to receive the SRD grant today has to be poorer than persons who qualified to receive the SRD grant in August 2022,” says Brickhill.
The IEJ and #PayTheGrants want the court to declare that the constitution requires the government devise and implement a plan that will address this “retrogression” and takes into account factors such as inflation and the cost of living.
They say they are not asking the court to tell the government how to allocate its resources, but this is disputed by the Treasury. In legal argument, its counsel, Gilbert Marcus SC, says they are asking the court to second-guess government’s budgetary decisions.
Marcus argues that when dealing with socioeconomic rights our courts have recognised that financial constraints can justify limiting access to social assistance. The Treasury’s main defence in this case is that what the applicants are asking for is unaffordable.
Marcus says the IEJ and #PayTheGrants do not dispute the “significant” budget deficit claimed by the Treasury. “Rather they do precisely what the Constitutional Court has said that they may not do — they advance a detailed ideological critique of government’s choices in relation to resources.”
He said the state has “genuine and profound budgetary constraints at the moment”.
“As a result of these budgetary constraints, the state has decided to prioritise those most in need of social assistance.” These are the beneficiaries of the other “permanent” grants, such as the child grant, the disability grant and others.
When looking at socioeconomic rights, our courts have said that, in each case, context is important to determine whether a government programme is reasonable, Marcus argues. Here, the context is that the state appreciated there was a need to provide some form of assistance to “those in desperate need” during the Covid pandemic.
After the pandemic, “the state reasonably decided to retain that assistance on a temporary basis, and subject to available resources, while the government decides the most appropriate way to improve the economic conditions of working age adults”. The idea that the government had introduced the SRD grant as a permanent policy commitment was a mistaken premise.
Counsel for the minister of social development, Thembi Ntoane, argues that the online application system is “effective” and “not complicated at all”.
“In fact it’s one of the easiest grants to apply for. The applicants do not need to leave their comfortable homes to go to the Sassa offices where they will be met with long queues,” she says. She argues that the bank verification system and the definitions of income and financial support are reasonable because the purpose of the grant is a “temporary provision that is made available for individuals who are temporarily in financial distress for that particular month”.
If a person does not qualify in one month, it does not mean they will not qualify in the next month. It cannot be argued that these regulations are irrational or unreasonable, she says.
The case will be heard on Tuesday and Wednesday.
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